SCALIA’S OCCASIONAL TOLERANCE OF FOREIGN LAW…. One of the more common complaints in conservative legal circles is that Supreme Court justices will, from time to time, cite international legal trends and precedents in their rulings. This, in reality, isn’t worth raising a fuss over, but it tends to cause the right to throw fits.
And perhaps no one is more offended by this than Justice Antonin Scalia, who argued not too long ago, “I fear the courts’ use of foreign law in interpreting the Constitution will continue at an accelerated pace…. We must cry ‘foul’ whenever the court dabbles in its fondness for the use of foreign law to justify its own excesses.”
Apparently, it’s a principle with some flexibility.
The court is taking its first look at how American authorities handle the Hague Convention on child abduction, aimed at preventing one parent from taking a child to another country without the other parent’s permission.
“The purpose of a treaty is to have everybody doing the same thing,” Scalia said, “and I think, if it’s a case of some ambiguity, we should try to go along with what seems to be the consensus in other countries that are signatories to the treaty.”
Is that so.
Scalia historically has argued that Supreme Court justices should effectively have no cognizance of “the consensus in other countries.” For members of the nation’s highest court, it simply doesn’t matter, he’s said, what foreigners have to say about any subject.
I’ll look forward to the bloggers and Fox News personalities calling for Scalia’s impeachment.
Post Script: I should note that this isn’t the first time Scalia has been at least open to foreign law at the high court. In June, in a dissent, Scalia cited a “Talmudic maxim … with respect to the Scripture.” That’s millennia-old foreign law, but it counts.
